I dissent. I believe that the judgment and the order appealed from should be reversed and the cause remanded for a new trial, but not for the reasons assigned by Commissioner Leiper.
In my opinion the conduct .of counsel for the plaintiff in introducing before the jury that which was not at all pertinent to the issues involved, the effect of which was well calculated to influence the jury adversely to the defendant, and the failure of the court, when requested by the defendant, to instruct the jury to .disregard a remark made by counsel for the plaintiff in his argument, all constituted error requiring that the ease be remanded for a new trial. (Kerr v. National Fulton Brass Mfg. Co., 155 Mich. 191, 118 N. W. 925; Iverson v. McDonnell, 36 Wash. 73, 78 Pac. 202; Stratton v. Nichols Lumber Co., 39 Wash. 323, 109 Am. St. Rep. 881, 81 Pac. 831; Lowsit v. Seattle Lumber Co., 38 Wash. 290, 80 Pac. 431; Westby v. Washington B. L. & Mfg. Co., 40 Wash. 289, 82 Pac. 271; Chybowski v. Bucyrus Co., 127 Wis. 332, 7 L. R. A. (n. s.) 357, 360, 106 N. W. 833; Cosselman v. Dumfee, 172 N. Y. 507, 65 N. E. 494; Tremblay v. Harnden, 162 Mass. 383, 38 N. E. 972.)
As to the basic question, whether or not there was a contract of guaranty separate and distinct from the contract for the performance of the operation and promise to pay therefor, I cannot agree with the conclusion reached by Commissioner Lmper. I would not burden the record with my views on the question if the case were remanded for a new trial. By the recommendation of the supreme court commission, based upon his opinion, and approved by the other justices, the *174district court is to enter judgment for the defendant. The plaintiff being thereby deprived of an opportunity of having his case again presented is my reason for giving expression of my views.
I think too narrow a construction has been given to plaintiff’s testimony. The jury was fully instructed as to the law, and under the instructions the jury could have, in my opinion, found for either party according to their judgment of the evidence and of the conclusions to be drawn therefrom. The jury was first told, in effect'—upon the plaintiff’s theory— that if it found from the evidence that the defendant, for a valuable consideration, agreed to effect a complete cure of plaintiff is hand or to make it 100 per cent efficient by performing a certain operation, and that he failed to carry out his contract, it should find for the plaintiff. (Instructions Nos. 1, 3 and 12.) And, second—upon the defendant’s theory—that if it found from the evidence that after the plaintiff and defendant had agreed that the defendant should perform the operation in question and what his compensation for the performance of the operation and subsequent treatment should be, defendant, without other consideration passing to him or paid or promised to him, stated that the result of the operation would be to make plaintiff’s hand 100 per cent efficient, and that he would so guarantee, or words to that effect, such promise and dependence upon it were without consideration and could not be enforced and verdict should be for the defendant. (Instruction No. 6.) That these instructions fairly and satisfactorily stated the different theories upon which the case was tried by the respective parties is evidenced by the fact that no exception was taken to any instruction given and no error is assigned to the refusal to instruct.
The evidence has been fairly stated by Commissioner Leiper, but I do not think it can be said that no other conclusion can be drawn therefrom than that the guaranty testified to by plaintiff was made after the agreement was entered into for the performance of the operation on the plaintiff’s hand by the defendant for an agreed compensation. The *175evidence is such, in my opinion, that reasonable men might well reach a different conclusion therefrom, and that the conclusion reached by the jury that the agreement to perform the operation, the guaranty, and the compensation agreed to be paid, were all one and the same transaction, was amply justified. The jury had the advantage this court does not have, of seeing and observing the witness and his demeanor and manner of testifying, which advantage the judge of the district court likewise possessed, and he has approved the jury’s finding in this respect. Indeed, it is my opinion that such a conclusion is the only natural and logical one that could be drawn from the facts testified to and from the surrounding circumstances; but whether this is so or not, it was certainly within the province of the jury to say what conclusion should be drawn where different minds might reasonably differ. The effect and value is exclusively for the jury (Lizott v. Big Blackfoot Milling Co., 48 Mont. 171, 136 Pac. 46), unless it can be said that the evidence taken as a whole furnishes the basis for but one reasonable conclusion (Old Kentucky Distillery v. Stromberg-Mullins Co., 54 Mont. 285, 169 Pac. 734; Milwaukee Land Co. v. Ruesink, 50 Mont. 489, 148 Pac. 396).
Whether the defendant did make any guaranty at all, 'as testified to by plaintiff and denied by defendant, was of course, the first question for the jury’s determination. The doctor claimed that he had not made any contract of guaranty at all— not that there was a contract of guaranty which was without consideration. The jury found this issue for the plaintiff. After the jury had resolved that issue in favor of the plaintiff, the next inquiry was whether the guaranty was made contemporaneously with the agreement to perform the operation for a consideration and as a part thereof, or afterwards and as a separate transaction. This issue was also resolved favorably to plaintiff. The jury having concluded from the evidence that the defendant did guarantee the cure, its finding that that guaranty was a part of the contract for the performance of the operation for an agreed consideration was a logical one. *176It was all one transaction; one conversation had at one place, at one time. There were not, as might be assumed from the questions so skillfully propounded on plaintiff’s cross-examination, several distinct conversations and guaranties. When the plaintiff said that the defendant guaranteed three different times, or made three different guaranties, that his hand would be as good as ever or 100 per cent efficient, hé referred to the different statements made during the one conversation. The repetition by the defendant of the guaranty to plaintiff three different times, in three different ways, during the one conversation, did not make a new guaranty each time the promise was restated. All that was said was said in the course of making the bargain or contract for the operation.
It seems to me that in the very nature of things, considering the relative positions of the parties and the surrounding circumstances, the only natural and logical conclusion from the facts is that found by the jury. What was said between the plaintiff and the defendant respecting the guaranty was not unusual, if the language employed had been used as applied to some different transaction; for instance, if like words respecting a guaranty had been used in connection with the repair of an article of personal property. If a person were taking an article of personal property into a repair-shop, as; for instance, a watch into a jewelry-store to be repaired, and the customer would hand the watch to the jeweler with the inquiry, “Can it be repaired?’’ and should receive the reply that it could, and then an inquiry were made as to the cost, and the price stated for which the work could be done, and then the price agreed to, thereupon, if the customer did not conclude or agree to have the work done except on a guaranty or promise on the part of the jeweler that the watch would be as good as it was before its injury or 100 per cent efficient, the guaranty or promise became, in my opinion, a part of the original contract. In other words, the real question of fact for determination in this case was whether or not plaintiff did agree to have the operation performed without regard to and independent of the guaranty.
*177The plaintiff in the course of his testimony made many statements clearly indicating that he would not have had the operation performed had it not been for the promise or guaranty made by the defendant to the effect that his hand would be as good as ever. For instance, the question was asked him, and it was the last question on this subject propounded to him on cross-examination: “Well, now, did you agree to pay him before he guaranteed the results or afterwards ? A. Well, he guaranteed the results before I ever considered letting him operate on it. Q. After you had agreed about what the operation should cost and you promised to pay him for the operation what you had agreed on it should cost, and in addition to that and voluntarily he agreed that the operation would make your hand 100 per cent efficient? A. Yes, sir; or I never would have let him go ahead.” Plaintiff was corroborated by his uncle, who was doing the repair work on Dr. Blair’s car at the time, and who testified: “Mr. Wilson asked him when he showed him it and asked him about operating on it, and the simple manner, and he asked him about what an operation like that would cost, and he said'from $25 to $50. Then Mr. Wilson asked him if he thought he could guarantee him a good job, a 100 per cent job. He said, ‘Yes, you can use it just the same as it was before it was hurt, after this cord was sewed up.’ I heard Mr. Wilson offer to pay the $25.” After a vigorous and skillful cross-examination, counsel for plaintiff endeavored, on redirect examination, to have the witness explain some of the statements made on cross-examination; but defendant’s counsel objected and the court would not permit a further examination, saying that the matter had been thoroughly gone into both on direct and cross.
Plaintiff has used the word “guaranty,” or that “he guaranteed,” in referring to the respondent’s promises or representations to him with respect to a cure; but it would be unfair to say that they were so used in any technical sense. The word “guaranty” is frequently used as equivalent to the word “warrant,” and was so used by plaintiff. To be enforceable as a contract, the guaranty or warranty must, as the jury was *178told, be supported by a consideration. An examination of the decided cases, however, will disclose that where the warranty was made .in the course of making the bargain or contract, and even though collateral thereto, a consideration therefor is supported by the price paid or agreed to be paid for the thing which was the subject of the contract—in this instance, the performance of the operation. In fact, I have been unable to find a case where the statements or representations which it is alleged constituted the warranty were made at the time of the transaction or bargain, and before the contract was performed, were not held to be supported, as to consideration, by the price paid or agreed to be paid.
That the guaranty may have been collateral to the contract for the performance of the operation for a consideration would not in itself invalidate it. Even though collateral, if a part of the transaction or contract, no separate consideration was necessary. It is not necessary that representations, in order to constitute a warranty, should be simultaneous with the conclusion of the bargain, but only that they should be made during the course of the negotiations that lead to the bargain and should then enter into the bargain as a part of it. (24 R. C. L., subject “Sales,” sec. 426; Morris v. Fertilizer Co., 64 Fed. 55, 12 C. C. A. 34; Standard Underground Cable Co. v. Denver Con. Electric Co., 76 Fed. 422, 22 C. C. A. 258.) “It is not, indeed, necessary that the representation, in order to constitute a warranty, should be simultaneous with the conclusion of the bargain, but only that it should be made during the course of the dealing which leads to the bargain, and should then enter into the bargain as part of it.” (Benjamin on Sales, p. 808.) “It will be sufficient, and the warranty will constitute a part of the sale, when, but only when, it is made at some time during the negotiations—after the treaty has 'been begun and before it is finally concluded.” (Mechem on Sales, sec. 1248.)
In the matter of the sale of personal property, the fact that the terms of the sale had been agreed upon and a part payment made will not render unenforceable a subsequent war*179ranty made at the time the balance is paid and the chattel delivered, upon the theory that such a contract is not complete until the delivery and payment of the balance of the purchase price. (24 R. C. L., “Sales,” sec. 426; 35 Cyc. 372; Douglass & Hemingway v. Moses, 89 Iowa, 40, 48 Am. St. Rep. 353, 56 N. W. 271; Vincent v. Leland, 100 Mass. 432; Spalding v. Conant, 146 Mass. 292, 15 N. E. 638.)
By the same parity and force of reasoning it would seem that any representations that were made by the defendant doctor to the plaintiff, in the nature of or constituting a warranty as to the results to be obtained prior to the completion of the contract, would be supported by the original consideration. Here the contract was not performed until the performance of the operation and the payment of the price. But it is not necessary in the instant ease to go so far as this. Here the warranty, according to the jury’s finding implied by its verdict, was made at the time of the agreement for the performance of the operation.
As I understand the court’s instruction No. 6, there is not anything therein not in harmony with the general principles of law herein expressed. Before the jury could have given any consideration to the principle of law stated in that instruction to the effect that there must have been a consideration for the contract of guaranty, and that without such consideration it was a mere gratuitous promise upon which the plaintiff could not recover, it must have found the guaranty or warranty was made “after plaintiff and defendant had agreed that defendant should perform the operation, and what his compensation for the performance of the operation and subsequent treatment should be.” It did not so find. It found, upon plaintiff’s theory as stated in instructions 1, 3 and 12, to the effect that the defendant for a consideration agreed to effect a complete cure; in other words, that the contract to perform the operation and the warranty was all one and the same transaction and was supported by the same consideration—the only logical conclusion, in my opinion, that could be drawn from the testimony.
*180Even under the conclusion which has been drawn from the evidence by the opinion of Commissioner Leeper, I do not think that the ease should be dismissed. In view of the restriction of the redirect examination by the trial court, after the vigorous cross-examination of the plaintiff on the matters relating to the guaranty, I do not think it can be said that the "plaintiff has had such a full opportunity to present his case that the court is justified in directing the district court to enter a judgment for the defendant.